Of Counsel

Legal Notes on Georgia and The South

Archive for November, 2007

Is It a Full Moon or Something?

Posted by Maggie on November 30, 2007

News has been a little slow the last few weeks, not nearly enough juicy tidbits for the blog. Except today it all went crazy.

A Supreme Court Justice is fined by the State Ethics Commission. (It’s unclear from the article what exactly the violation is, but it’s something from her 2004 campaign.) A young mother in Augusta stabbed her two small children to death. (The article notes that police are unsure why. A guess: she’s crazy.) The Atlanta PD has known for 7 years that the husband of one of their officers is paying young girls for sex and taking pictures, but did nothing. (The officer has been suspended, the FBI has filed federal charges against the husband. Not immediately clear that they can file anything against the wife. Can you obstruct evidence if there’s not an open case?) The State Ethics Commission has voted to open investigations against 6 current and former state lawmakers and candidates for not filing campaign financial reports after an AJC piece earlier this year. Atlanta’s murder rate is up this year. The police blame the disbanding of the Narcotics unit (which was broken up after they did too much shooting themselves) and a local gang. I’m not sure those reasons are terribly valid, though we never see reports of murders in Atlanta involving low- or mid-level drug dealers, so I couldn’t say for sure. They do cite meth replacing crack for killings. From what I know, meth-fueled killings would be far more likely than the crack-fueled killings we used to hear so much about. (Crack gets you high for about 10 minutes. Meth can last hours, days, etc.) There is some crazy stuff going on with the Jefferson police force since their former chief was indicted. Yet another in the string of law enforcement crimes that have been reported in Georgia in the last several months. The Georgia Supreme Court will hear arguments Monday on the denial of open records requests by police for two old murder cases. The Athens Banner Herald claims they must release the records on the 1992 and 2001 unsolved cases, the police claim it’s still an open investigation.

And finally, following up on the sex offender residency restrictions, the AG is now asking the Court if the law is only unconstitutional for property owners or if it applies to everyone. I would argue that since any of the offenders could purchase property in the future and then be ousted, that it applies to everyone. I don’t see it being the case that you can selectively apply this kind of law. I hope prosecutors are backing off until the waters are clear.

Posted in AJC, General | Leave a Comment »

Lifestyle is a Bad Word

Posted by Maggie on November 29, 2007

Scott over at Simple Justice writes occasionally about Biglaw. Many of us, including yours truly are in more of a Littlelaw kind of world. Small offices, focused practices, and often a good amount of success. Most of the criminal defense bloggers you’ll find are either PD’s or in Littlelaw. Sometimes it seems the two sides are at odds with each other.

Sometimes over in our side of the profession it feels like Biglaw is the only thing that exists. Huge offices, hundreds of attorneys, giant corporate clients. (I’ve complained before that The Daily Report for Fulton County routinely ignores the existence of any other kind of practice.) My feelings on Biglaw were refined a few years ago when I dated one of the drones of Biglaw. (It’s long over and I’m happily hitched to a non-lawyer.) I was suddenly his date to all the firm functions and it was the weirdest thing ever. We had dinners with his co-workers, who complained about their divorces, missed vacations and new fancy gadgets. I couldn’t understand how they didn’t see that their jobs were slowly but surely destroying their lives. My one big realization was that these firms have to encourage socialization, it creates a hive kind of mentality where your life may suck, but hey so does everyone’s. It makes it feel like it’s all normal.

Not all firms are like that. Some of them have employees who are actually happy, though paid at a rate slightly below the insane figures paid by Biglaw. (Yeah, they barely scrape by, those “lifestyle” guys.) A lifestyle firm meant you got to see your kids at night. But apparently this has become a bad thing. Arent Fox in DC has decided they no longer want to be known as a lifestyle firm. They got that reputation after–shocker–their employees claimed to be happy. Now they’ve told employees to remind recruits that they “work hard” and “make a lot of money.”

I apologize, but if Biglaw wants a little more respect, they need to act in such a way as to deserve that respect. Work hard, do well, that’s fine. Recruit “aggressive talent,” whatever. But this kind of talk, along with all the salary raises for 1st years, does nothing to help the profession. And it makes me happier to be a member of Littlelaw.

Posted in Blawgs, General | Leave a Comment »

State Funding

Posted by Maggie on November 28, 2007

Still playing catch-up. Last week, the AJC reported on the upcoming GPDSC board meeting where they’ll have to decide what to do with their underfunded budget. The article mentions ways to make the system better, including more conflict defender offices. These offices handle cases that PD’s have to conflict out of when there are multiple defendants or if your client is a witness against someone else. It’s true that the system would be much more cost-efficient this way, but it puzzled me. Last year when the big budget cuts were made and several people were laid off, I heard almost all of them were from the conflict offices. In fact, we hadn’t been allowed to conflict out of cases for several weeks at the time I left my office. If conflict offices are such a priority, why did they cut back?

I also thought the State of Georgia doesn’t seem to want to pay anyone these days. They aren’t paying GPDSC money that should be theirs under the funding system. They’re in an outrage that the re-structuring of Grady Hospital requests their financial assistance. These days it seems legislators are quick to tell us what’s wrong with everything, but don’t want to put in a dime to fix it. Grady, for you non-Atlantans, is a huge hospital downtown that trains most of the local medical students, handles most of the city’s uninsured patients, and is the only major trauma center in the city. (You have to have a trauma center to have a major airport, which we obviously do.) Grady is going to self-destruct unless it becomes a non-profit. Everyone agrees on this. Grady is necessary for the city. Everyone agrees on this. But no one can seem to agree on having to actually help. The whole thing is starting to make me slightly ill. Especially since GPDSC and Grady are two major resources for low-income Georgians.

Posted in AJC, General, Public Defenders | Leave a Comment »

GA Supreme Court Update

Posted by Maggie on November 28, 2007

One of the many Nichols-related court issues has come down. Britt v. State, Ramseur v. State, and GPDSC v. Saunders are in one consolidated opinion. The short version is that other capital defendants requested documents relating to the funding of indigent defense from GPDSC, particularly Nichols. The Court ruled that GPDSC does not have to turn over the documents because it would reveal trial strategy of several open cases. They also ruled that these documents were irrelevant to the actual defense of these cases and so not subject to discovery. Further complicating the waters, attorneys in some cases refused to argue the motions citing a conflict between their clients and their employer. At first this sounds understandable, but then you find out that there were over a hundred separate motions filed on various issues and that the trial court was happy to let counsel choose which motions to argue and whether to present evidence. So they didn’t even have to talk about the funding motions, but still refused. Valiant, yes. But still contempt, says the Court. Two justices dissent and stand by defense council, arguing that any conflict is a big deal in a death penalty case. The dissent says conflict should stop the presses and halt proceedings until resolved.

This case is a complex one. I certainly wouldn’t want my expenses regarding consultation of experts exposed before trial. But I also wouldn’t want to have to continue representation when a potential conflict was acknowledged by the court. To me, it seems like the whole situation could have been handled better by the trial court, holding off on any further motions until the conflict was resolved. Just goes to show you the chaos the Nichols case is creating all over the State.

Also of note, Junior v. State, S07A0790. This is just a minor point in the opinion but one to consider. The Court affirmed the trial court’s ruling that defense not be allowed to cross-examine witnesses about their immigration status. If your client or witnesses supporting your case are illegal immigrants, you should file a motion to exclude questioning on that topic. Now you’ve got the Supreme Court to back you up. It’s especially helpful in anti-immigrant counties.

Posted in Court Update | Leave a Comment »

A Little Slow on the Draw

Posted by Maggie on November 27, 2007

Go figure, the day I leave town and take a vacation from the blog, the Georgia Supreme Court makes headlines by striking down the state’s sex offender residency restrictions.  I spent several days without access to pdf files, with no way to read the opinion. By the time I got back and started reading the news again, law enforcement had decided that it didn’t matter that the law was unconstitutional and they were going to enforce it anyway.

The Attorney General has thankfully clarified the issue, telling police that unconstitutional does in fact mean unconstitutional, no matter the person’s circumstances. However, it’s not the end. In this article, a Republican congressman from Sandy Springs says the legislature will re-draft. Based on my reading, it seems all they’ll have to do is allow grandfathering of sorts, that offenders can stay where they are if something new shows up after a certain date. I’m betting that’s the route they’ll take, though it completely ignores the bigger issue.

For those who haven’t read the opinion, the Court struck down the law based on the takings clause of the Constitution. The takings clause doesn’t allow the government to take your property without compensating you for it fairly. The law required sex offenders to move from their residences if a new day care or church or whatever showed up, meaning they’d never be guaranteed to stay anywhere. For property owners, it’s a taking. An easy but bad redraft would just say that offenders could stay as long as the residence met the requirements as of a certain date, so if something new came they could stay.

Here’s the problem. For those who should be kept away from children, there’s no protection. For those who have no reason to be kept away, it’s a huge burden. This op-ed puts it well.  Sex offenses are not one-size-fits-all.  And the mob mentality that seems to magically appear when sex offenses are on the table is ignorant to the statistics.  Sex offenses are less common.  Offenders are less likely to re-offend.  Many offenders were involved in consensual acts.  Others preyed only on family members.  The sexual crime against a stranger that you see on all those procedural dramas happens much more rarely and are much more likely to be reported.

The Court’s opinion is a step in the right direction, but it’s not the end of the battle.  But happily we’re on the forefront of a major issue that needs to be addressed.

Posted in General | 3 Comments »

Today’s Nichols Update

Posted by Maggie on November 19, 2007

The Daily Report announces the unsurprising delay of Nichols’ trial. Again. They have a link to Judge Fuller’s order and the Defense’s Response to the State’s Emergency Motion to the Supreme Court trying to get Fuller thrown off the case. It’s the first of Judge Fuller’s orders I’ve seen and it strikes me as very fair. I know there are people on both sides of this issue who have a real bone to pick with Judge Fuller, but to me I find myself agreeing with him the majority of the time.

Though I found myself wondering this morning… the defense dropped that contempt motion against GPDSC. I’m curious about their motives. Did they sit down with GPDSC and work something out? Did they decide that with the State’s Emergency Motion it wasn’t worth it? Or is it because the State is alleging that due to Judge Fuller’s recusal from the contempt motion that he should be recused from the entire case?

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Science Shows Up in the Courtroom. Finally.

Posted by Maggie on November 19, 2007

The layman has probably not heard about all the debunking that has been going on of late for many tried-and-true prosecuting techniques. You probably haven’t heard the studies on eyewitness identification that show just how biased you can make your witness and what techniques help with memory. You probably didn’t hear that the science of bitemarks has been shot down and that the expert who traveled the country testifying that he could match a bite to a person’s mouth was full of crap. And you may not have heard about the lead bullet analysis the FBI has quietly stopped doing after it put people in jail for years.

If you are of the not-yet-informed, here are some helpful links. The Washington Post reports on one particular case that may get overturned. It’s a nice thorough run-through of the facts of the original case and just how they screwed it up. Sadly, he’s already been in prison for over a decade. Simple Justice has his take here.

Eyewitness Identification Reform Blog is a great source for ongoing news. This post is one citing studies showing just how bad id’s do at convicting.

Here is info from The Innocence Project on the bite mark debacle.

Even fingerprints have been challenged. These cases all show that as defense attorneys we need to challenge every kind of science that comes into the courtroom, no matter how familiar it is.

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Dream Jobs

Posted by Maggie on November 15, 2007

Maybe it is a sign of my youth that I still have “dream jobs.”  I like my job, I like my caseload.  But I still have these other things I would love to do.  It hasn’t quite sunk in, despite my years of practice, that I’m actually in a career. 

One dream job, of course, is to be paid to liveblog trials.  Or report on trials.  Or anything like that.  I’m a critic at heart, and since I’ve directed and crossed and opened and closed, there’s nothing I love more than telling other people what they’re doing wrong.  I would love the chance to analyze testimony, sum up evidence, evaluate witnesses, and translate the whole experience for someone else.

You may ask why I don’t just want to try cases and be perfectly happy with that.  Well, as trial lawyers know, it’s a tough road.  You can lose no matter how good your case is.  You only have so much control over a jury.  It’s a physical, emotional, and mental marathon.  I only have so much of that in me each year. 

I’ve also always loved teaching.  When I got to law school, I quickly realized I wouldn’t be able to make it into the world of legal academia.  The Socratic method isn’t really my style.  And there’s a certain path you take to become a professor.  It starts with a prestigious clerkship, then moves to a prestigious firm, years of prestigious practice, and then you can be a professor. 

My first semester of law school, I hated Property.  It showed in my grade.  It wasn’t bad, but it wasn’t good enough.  I learned this when I applied to be the new Civ Pro TA.  The old Civ Pro TA was amazing and I wanted to be the new her.  I also happened to completely kill that class and get the #2 grade in the class of 100.  The prof seemed to think I was a good candidate until he saw that Property grade.  I simply wasn’t consistent enough, it seemed, and the job went to someone else.  (I didn’t know who it went to initially and regularly spoke to my friends of how I wanted to egg the person’s house, only to find out the next year that it was one of the same friends who’d kept it quiet after the egging-the-house thing.  That person, of course, became the #1 student in our class and will probably end up as a professor.) 

I was okay with not being a law professor.  I would make it.  I didn’t even think I wanted to be one until I recently saw that my school has hired two relatively recent grads as faculty.  Now, in all fairness, they were great students and will probably be great professors.  They had the clerkships.  But with those clerkships they couldn’t have actually worked for any substantial period of time.  And now I am jealous of them for no real reason except that they seem to have prematurely obtained their dream job and I am reminded of that 1st semester Property grade that robbed me of my dream. 

Perhaps I will just abandon those dreams for my other dream: to sit at home all day and write crappy legal thrillers.

Posted in General | 1 Comment »

Book Banning in WV

Posted by Maggie on November 13, 2007

I occasionally post about stupid actions by school administrators and the continual fading of student’s speech rights. This closely ties in to schools that ban books or remove them from reading lists. As a big reader, it’s a subject I’m passionate about, and for those of you who feel the same way, I thought I might pass on the link to this letter written by novelist Pat Conroy, one of our treasured modern Southern writers, after parents in West Virginia tried to ban two of his books. Conroy is extremely fair. His books are violent and tumultuous and deal with difficult issues. But they’re also things that are exceptionally real and that shouldn’t have to be hidden from teenagers.

Posted in General, The South | 1 Comment »

Billing

Posted by Maggie on November 13, 2007

There shockingly isn’t any Nichols news so far today. So I thought I’d throw in a slightly more personal post.

The transition to private practice is a strange thing in many ways. (Blonde Justice has been blogging about it, too.) The one I anticipated to be the most strange was billing. As a PD I regularly worked on 10 to 50 different cases a day. When things slowed down, I would do my best to catalogue the time I’d spent in the software Georgia uses, JCATS. Most PD’s I know weren’t too dilligent about jcats time-logging, but I enjoyed it. Mostly because it was like having a giant to do list and crossing things off. It was knowing I’d spent time accomplishing something, even if it didn’t lead anywhere. My neurotic brain needs this.

Oddly enough it prepared me well for billing. Yesterday, for example, I billed like crazy. It made me feel very on top of things. I also made a to-do list so I could double up the feeling of accomplishment and efficiency. I am one of those people who gets an insane joy out of crossing off an item from a to-do list.

But the thing about billing I can’t do, is look at the total at the bottom of the screen. It sometimes seems crazy to me that a phone call I just made cost someone twenty bucks. I know this is necessary for me to continue to get paid my salary and keep the office running and such. But it’s really better not to look. Except for flat-fee cases.

At least, as a low-girl-on-the-totem-pole I don’t have to be in charge of setting rates for cases. That’s one thing that’s always kept me from a setting-out-my-shingle kind of situation. One of the nice things about being a government attorney was not having to deal with the money. And I’d rather keep it that way.

Posted in General, Public Defenders | Leave a Comment »